BATES KarenThe UK's largest ever private sector equal pay claim in respect of work of equal value has been given the green light to proceed. The Court of Appeal has upheld the employment tribunal and employment appeal tribunal's decision that a group of female retail workers in Asda stores can compare themselves with a group of male Asda distribution depot employees. Karen Bates explores the decision.

Asda’s position was that because it set the terms and conditions for the warehouse workers separately to the terms and conditions of the retail workers then the two pay regimes were distinct and comparison for equal pay purposes was therefore not appropriate. This argument was resoundingly rejected by the Court of Appeal who found that the comparison was valid when applying both domestic and European law as there was no doubt that the ultimate responsibility for setting the pay regimes lay with the Asda board and/or Wal-Mart.

The key test considered for establishing whether the retail workers could compare themselves against the distribution workers was the North hypothetical test. This test is the hypothetical comparison stemming from North v Dumfried & Galoway Council that is permitted by the Court where there is no comparator currently working at the claimant's establishment. The test looks at whether the male comparator would continue to work on the terms and conditions currently imposed on him if he were transferred to the claimant's place of work. In this instance, the Court upheld that warehouse workers would be employed on the same terms as they currently are if they were moved to carry out distribution work in Asda stores. The Court of Appeal has clarified that the terms of employment can be as "different as anything, as long as terms for distribution workers were common as between the two establishments" (in this case the Asda stores and the depot). Questioning whether common terms and conditions apply in the hypothetical is useful as it wasn't realistic that warehouse workers would ever be employed in distribution jobs in Asda stores.

The decision is important for the future of equal pay claims because it makes it clear that employers cannot avoid liability through the physical separation of male-dominated and female-dominated workforces and clarifies that the North test extends even to a workplace where the comparator would never work in practice because the nature of its operations are so different.

For more information on issues relating to equal pay, contact Karen Bates on karen.bates@footanstey.com or 01392 685 221.